Bad Faith Negotiation 377

I seldom comment on Brexit, largely because I neither see leaving the EU as a panacea nor the EU itself as a Utopia, and am alienated by the over-extravagant passions and claims on both sides. In addition to that, the FCO is largely excluded from Brexit negotiations, being perceived by the Tories as a nest of remainers, so I seldom get any interesting information fed to me by ex-colleagues.

I should admit at this point that my apparently effortless expertise on myriad subjects is something of a fake, because often posts are prompted and informed (and very rarely, even written) by someone on the inside, and sometimes it is not possible to tell you that. But sometimes I can tell you, and today this knowledge comes from the inside.

The Legal Advisers of the FCO remain the UK government’s source of expertise on public international law. When the Attorney General publishes his view on such a matter, it has been drafted by FCO Legal Advisers or at the least is based on a minute from them. The sole exception to this of which I know was when Blair’s Attorney General, Lord Goldsmith, received formal advice from FCO Legal Advisers that to invade Iraq would be an illegal war of aggression. Goldsmith then flew to Washington on instruction from Blair and Goldsmith’s final advice that the war was legal was based on drafting, not from FCO Legal Advisers, but from George Bush’s Legal Advisors. That is one of those incredible facts that I often find hard to understand do not lead to active public outrage. I wish I was a more religious man and could be sure that Hell awaits Goldsmith. I comfort myself with the thought that Goldsmith might himself be religious and cowering.

There is currently considerable alarm in the FCO that Legal Advisers have been asked about the circumstances constituting force majeure which would justify the UK in breaking a EU Withdrawal Agreement in the future. The EU did not fall for Johnson’s idea that a form of Northern Irish “backstop” would only come into effect with the future sanction of Stormont, as this effectively gives a hardline unionist veto, and Barnier was not born yesterday. The situation that Johnson and Raab appear now to contemplate is agreeing a “backstop” now to get Brexit done, but then not implementing the agreed backstop when the time comes due to “force majeure”.

There are two major problems with this line of thinking. The first is that it will give unionists an incentive to foment disorder in order to justify breaking the backstop agreement – indeed there is a concern that might be the tacit understanding Johnson is reaching with the DUP. Remember the British state conspired with the same people to murder the lawyer Pat Finucane and destroyed the evidence as recently as 2002.

The second problem is one of bad faith negotiation, and this is what is troubling the diplomats of the FCO. To negotiate an agreement with the secret intention of breaking it in future is a grossly immoral proceeding, and undermines the whole principle of good international relations. I should like to be able to say that I am sure this cannot be the intention. But when I look at Johnson, Raab and Cummings, I am really not so sure at all. It is possible that Johnson will succeed in the apparently insurmountable challenge of securing a deal all parties can agree, by the simple strategy of promising some parties he has no intention of honouring it.


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377 thoughts on “Bad Faith Negotiation

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  • Doghouse

    “….BREXIT is driving all parties involved on all sides nuts….”

    And not just the politicos, some of the posters on here are down with the sickness. The unnecessary relentless abuse and denigration of people’s perceived intelligence for no better reason than they hold a different opinion to one’s imaginary preferred future, is an inexcusable arrogant disgrace. I’m no prude and hold no cards in either camp but find it frankly, well, nauseating. Destroys what little sense of optimism one tries to hold.

    • Hatuey

      If it hurts that much, why read? And, having read most of the comments on here reasonably thoroughly, I can attest that every single one includes a good degree of what you might call substance and so I must wonder why you don’t address the substance instead of grandstanding like this?

      I find moralising quite unpalatable, especially when delivered in such a hypocritical way — referring to posters being down with “sickness” in a comment that suggests we should all be more civil, can be described as nothing but hypocrisy.

  • Dungroanin

    Well there you have proof of this Governments absolute bad faith on the hoof!

    PissRogue the Leader sneaks in a change to House business for Monday under points of order and then sneaks out – that is how little they care of how they will ensure their no-deal brexit! Just ignore what happened today!

    Btw it is their fantasy Queens Speech they are derailing, which should show everyone what a complete bollocks the prorogation was.
    The Monday session was about the NHS – which the opposition were going to use to remove from any future trade deal incase of

    So not only cheats and thieves but liars and sneaks too, and if bobo doesn’t send his letter by midnight requesting an extension, a criminal act by the PM!

    As for Letwin and co (and DUP) they think, they really believe, they have hoodwinked the country and this WA will get through next week or even as early as Monday!

    Ah well – at least We’re in the semis but its against the Kiwis – one more week to dream!

    But that is a fair contest, unlike the Hard brexit stitchup.

    • michael norton

      Well it would seem three letters have been sent to Tusk.
      A photocopy of the Parliamentarians request for a delay, unsigned,
      a letter from Sir Tim Barrow, explaining what might be what,
      a signed letter from Boris Johnson, asking the E.U.Elite to ignore the Parliamentary letter
      and not grant an extension.

      Expect Boris Johnson to be arrested by tomorrow.

  • mikjall

    In a situation like the present one, there cannot possibly be good faith negotiation on either side. The eventuality of Brexit can be a disaster or not according to what those on both sides choose to make of it. Clearly, if there are no sensible agreements made on the Irish border, the preservation of established supply chains, the development of constructive trade agreements, efficient customs control, etc., etc. it will be a losing proposition for everyone, and I know of no one, of any persuasion, stupid enough to deny this. But there is no chance of good faith negotiation on any such matters until the UK has either left with no deal or is clearly prepared to do so — with a final deadline: and why wait? That’s because the EU is not willing to let the UK leave without punishment, and of course is not willing for non-members to have the same benefits as members. This is not to pretend that the UK is any more prepared for good faith negotiations than the EU, of course, prior to leaving. The deals necessary to avert disaster, and which would be mutually beneficial for the UK and the EU, will have to be made once the UK has left; pre-leaving deals are in principle possible but are, quite evidently, impossible in fact. Another reason why good faith pre-leaving negotiations are impossible is because neither the UK, nor the EU, has internal consensus about what they want — surely the UK “position” is totally chaotic and the prisoner of internal power plays. And those who are attempting to short-circuit Brexit, by whatever means, are opposed finding necessary solutions and allowing them to go forward. Further extension is bad for everyone. So what must happen is for the UK to leave, definitively, as soon as possible with “no deal”, at which time both the UK and the EU would finally be forced to work out good faith, constructive agreements on the exigent, potentially destructive, issues, many of which, although hardly all, have been identified and thought about in the course of previous bad faith “negotiations”. A quick, decisive, and unambiguous demonstration of good faith would permit the retention of existing relations — post-Brexit — for a limited period, say three months, partially or totally renewable if (and only if) constructive, mutually beneficial, agreements were actually being hammered out. And since failure to their being hammered out would be destructive for all parties, my guess is that they would be made quickly enough. (Probably several referenda on various particular agreements would be needed in the UK, of there is to be national consensus. Such referenda would not go forward in the EU, of course, which in that regard is a dictatorship.) But with politicians, you never really know, and UK voters would need to demand this, putting public interest ahead of party affiliation and self-serving ideology. People pretend that leaving with no deal would mean that there would never be deals; but of course that is hugely stupid. It would in fact mean quick, fair, and sensible deals, if there are any people of good will left; and of not, to hell with them.

  • michael norton

    Not too sure what is going on, is Boris “Running Down The Clock”

    Government spokespersons are saying things like, almost no chance of leaving bu Halloween.
    Parliament has ground to a halt.

    Maybe the plan is No Deal on Halloween?

  • michael norton

    On Thursday, European Commission President-elect said that if the European Union Elite agreed to the Brexit extension, she would request Britain to name a nominee for the commission, something which Boris Johnson had repeatedly stated he would not do.

    So the E.U. Elite may not grant an extension unless the U.K. plays the game of the E.U.

    • michael norton

      The Liberal Lot and the SNP are offering to facilitate a General Election in early December, Boris is warming to this notion.

      • michael norton

        now Jeremy Corbyn is warming to this notion, also.
        So the Conservatives, LibDem, SNP and Labour want a General Election this December.
        It’s beginning to Look a bit like Christmas.

  • michael norton

    Owen Smith M.P. has announced he will not be standing in his Pontypridd constituency, citing political and personal reasons

    I expect that announcement will make Jeremy Corbyn very, very happy..

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